We begin by understanding the meaning of the term, "Equality", which is a condition of possessing substantially the same rights, privileges and immunities and being liable to substantially the same duties. It refers to 'Equality' under the same condition and among persons similarly situated. On the other hand, the term 'equity' denotes the sprit and hobbit of fairness, justice and right dealing, which would regulate the intercourse of men with men.1 History is a witness to the human struggle for achieving equality. The first major victory in the known history is that of the grant of 'Magna Carta'.2 Well an intention to the understanding of these concepts shows, we are really serious to learn the law.
Talking of equality and rights means that we are discussing 'law'3 as a subject. And obviously our interest increases to study and research to know the concept of law and the way it affects a layman. Law is a rule or method according to which phenomena or actions co-exist or follow each other. Law in its generic sense is a body of rules of action or conduct prescribed by a sovereign4 and is obeyed by the people habitually.5 The law of a state is to be found in the statutory and constitutional enactments and that too as interpreted by its superior courts.6
Law has also become much more widely recognised as the standard by which behaviour needs to be judged. So, it is quite possible and desirable for people in general to take an interest in law. Consider the extensive reach of modern law. Most people would agree that it is desirable to be governed by law and rules so that, in any department of life, we can understand in advance what is democratically permitted and how certain things must be done.
In this regard known constitutional expert Dicey observed: "Not only that with us no man is above the law, but (what is a different thing) that [ - ] every man, whatever be his rank or condition, is subject to the ordinary law of the [state] and amenable to the jurisdiction of the ordinary tribunals."7
We do have rules, in our society and these rules exist as codified law. The codified law was introduced in India during eighteenth and nineteenth centuries, and it provided uniform standards to settle civil and criminal disputes.8
In order to implement the rules of standards and for settlement of disputes, legal institutions comprise of judges, lawyers, courts, system of interpreting law and system to respond to the requirements of legal order. Obviously a system of laws is necessary, in the subcontinent the legal system was introduced during the nineteenth century.
The role of judges in the legal system is very important. They apply and interpret laws, and more specifically decide cases in the framework of standards, like mens rea in criminal cases. The judges also weigh the evidence within the framework of law of evidence. To be convicted of murder, a defendant must be shown to have had an intention to kill or to cause serious injury. Similarly for an agreement to be an enforceable contract, it must be the outcome of an offer from one party, and has to have been accepted by another party. These rules, though, can be interpreted in different ways, and their judicial application to real human drama is a very important part of the legal process. Knowing what a rule says does not help much unless you know how it will be applied.9
We do have a well structured institution of courts. The Supreme Court is the apex court and a final court of appeal. Then there are Provincial High Courts and Courts of District Judges. The subordinate courts consist of Judicial Magistrates and Civil Judges. Besides these courts, in our legal system, many Tribunals have been introduced dealing with specific laws such as taxation, services and environment. At the Provincial level, all courts are under the supervision and control of High Court.
The institution of lawyers is another important factor of our legal system. The lawyers are trained by imparting knowledge of law and rules of interpretation. They obtain licences to practice law from the Bar Council and follow their Code of conduct. The work of lawyer is that of a court advocate and a writer of detailed professional legal opinions for the client. Many lawyers tend to specialise in particular areas of law such as taxation or financial services. The lawyers are also hired by government and commercial institutions to conduct their cases or to manage their legal work. They render useful public service by presenting or defending the cause of their client.
In the legal system cases assume importance where legal principles are at stake. In our legal history the cases of Molvi Tameez Uddin Khan and Doso (these were decided by the Supreme Court of Pakistan) are of great importance for learning how legal propositions are settled within the framework of legal standards.
Where a court lays down a general statement of law, the same is known as ratio decendi. For example, where an executive authority intends to affect one's, property rights, the rule is, the affected person must be given a notice showing the cause against him and full opportunity to present his defence.10 This statement is a ratio decendi, however, where in a case statement of law that is not an essential part of the ratio decendi is known as obiter dicta.
The language of judges and lawyers might be notorious for being technical, laden with Latin, and archaic, but the relationship between law and language is even more interesting and important than the relationship between other occupations and their languages or codes. Many common words such as 'culprit', 'international', and 'codify' all originated in legal writing.11
There may be many problem areas, particularly where states obliterate the rules of equality and equity. For example, act of enacting special laws by compromising the rules of equality violates the legal principles. The rule of equality is very much part of our Constitution, and lawmakers should be careful while giving their consent to laws, which create special rules or procedure for citizens.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. Gilles v. Department of Human Resource development, 11 Cal 3d. 313
2. Magna Carta regulated the operations of British government and a scheme of reform was implemented in 1258 and these reforms gave birth of the English Parliament.
3. With reference to its origin, law is derived either from precedents, from legislation or from custom.
4. John Austin accordingly defined law as sovereign's command enforced by sanctions. This is what analytical jurists believe, though HLA Hart modified it by saying that law is a body of primary and secondary rules, but contends that in absence of a rule of recognition, it all becomes meaningless. It appears he is influenced by the thoughts of Hans Kolson.
5. However, 'Salmond', distinctly defines law as a body of rules recognised and applied by the state in its administration of Justice.
6. See the Constitution of Pakistan, 1973 and the major codes including the Law of Evidence and the Law of Limitation, there also exists another set of rules known as, "Special Laws", eg, Tax code or Import and Export laws.
7. A.V. Dicey, Introduction to the study of the law of the Constitution, Macmillon, London (1893)
8. The major laws governing our society were enacted by the British parliament.
9. See the well known observation of an English writer Roy M. Cohn who once said: 'I don't want to know what the law is; I want to know who the judge is.
10. See Farid Sons case 1961 Sc
11. English language is rich in legal expressions such as 'that story would be laughed out of court' and 'I hold no brief for the Football Association'.
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